Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Joseph Fishkin, University of Texas Law School
A recent story perfectly embodied the central puzzle in a paper that we recently published in the Supreme Court Review. The story tells about the war between the Koch brothers and the Republican National Committee over whose database of voter information will be used in 2016. It sounds a little arcane, but voter data is the lifeblood of any campaign: who is on your side, who do you need to persuade, who is a reliable voter, and where do they live? Keeping track of all this and providing the information to campaigns is a classic function of political parties—a function that is central, as Jack points out, to what parties do in the information age. In the past this function has been carried out by the official parties. But now the Koch brothers have built a database that is easier to use and well liked by campaigns. GOP leaders, however, are nervous about having such an important campaign instrument in the control of private actors rather than the formal party structure. The story, in short, is about the war between the official parties and what we call the shadow parties – the SuperPACs and nonprofits now playing an increasingly important role in the electoral process. These days the shadow parties are doing a lot more than taking out some ads. They are taking over major functions once reserved for the official parties.
Our article begins with McCutcheon v Federal Election Commission, which struck down the FECA’s caps on how much hard money in toto one donor could give to candidates and party committees in a given year. It quickly morphs into a rumination on the future of the party system. That’s because McCutcheon can only be understood against the deep shifts taking place in American politics.
By some measures, the parties are stronger than ever. Party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups,” which have taken over a startling array of core party functions. But these “outside groups” are deeply and durably aligned with one party or the other. They are run by consummate party insiders. That’s why we call them shadow parties. For reasons we discuss, the shadow parties aren’t lone wolves. They are deeply intertwined with the official parties and properly understood as part of what we call the “the party writ large” - the large network of donors, activists, and organizations that constitute the party.
The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument—and the emerging conventional wisdom in the field—is that McCutcheon will level the playing field between the official party leaders and the shadow parties by allowing donors to pour more money into the official party structure.
We are skeptical. It’s not that the hoped-for effect won’t exist. It will. Some funds that would have flowed to outside groups will seep back into the official party structure. But we think the effect will be modest. Moreover, the crude argument—pitting “outside” funders against “the parties”—fundamentally misdiagnoses the problem. The real problem with the growth of shadow parties has less to do with the “strength” or “weakness” of the official parties relative to outside groups and more to do with who exercises power within the parties writ large. What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large.
That’s precisely why the database story is so interesting. The Koch brothers are part of the GOP writ large. This is an internecine war. Indeed, as the story makes clear, it’s not just money that is flowing away from the official parties toward the shadow parties; it’s talent and authority. We are beginning to witness a brain drain of sorts, with some of the most important and talented players in politics being housed in the shadow parties. It’s not surprising that the Koch brothers’ shadow party has created a better campaign tool than the RNC. They are running their organization with the funding, talent, and efficiency that we typically associate with the private sector. But there is a tradeoff there, and it’s a big one: private shadow party groups are beholden only to their donors, not to the rest of the party.
Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. Money isn’t just shifting from one place to another within the party writ large; it is shifting from one type of institution to another, quite different type of institution. Compared to the official parties, the shadow parties are more hierarchical and less porous. They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful—the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites—and largely eliminate their already-diminished role within the party writ large.
As we’ll discuss tomorrow, the shift toward shadow parties raises important questions not just about the future of American politics, but about who ought to control political parties. We’ll turn to that normative question in the next post.
Crossposted on Election Law Blog Posted
by Heather K. Gerken [link]